Your Will – watch your language
A definition of a good Will is not that it will stand up in court but that it will not need to go to court at all. Besides which, avoid joint Wills. There is no cost saving in having two Wills in one document. Joint Wills are difficult to draft and often result in ambiguities and interpretation problems. It is much easier if you and your spouse each have your own Will. People married in community of property should remember that all assets are jointly owned.
As parents you often wish to benefit your children equally. A child might predecease you so it is wise to specify that your child’s share will then go to his or her children (your grandchildren) by representation. This means that your grandchildren take their deceased parent’s share.
If you leave something as a bequest to two people then avoid the phrase “in equal shares”. However, if you do specify “in equal shares” then say “I leave my estate in equal shares to A and B, or the survivor of them”. This will avoid the application of a common law principle which could see one half of the assets being intestate.
You should be aware that adopted children, children born out of wedlock and posthumous children will automatically benefit by law unless specifically excluded. It is important to note that this principle also applies to beneficiary nominations under assurance policies. Remember too that in the case of divorce, if you die within three months of divorce without changing your Will, the benefits are suspended unless there is a clear intention to benefit your divorced spouse. If you do not wish to benefit your former spouse, your Will should be amended immediately on conclusion of the divorce to avoid benefits devolving on your former spouse after the three month window period.
Essential clauses in a Will include the revocation of prior Wills, the disposition of assets and the nomination of an executor. Great care must be taken with the correct wording of these clauses in a Will. For example if you have several Wills for assets in different countries, it is important not to revoke all other Wills when you amend or make a new Will in a specific jurisdiction.
Non cash legacies should be specifically defined. However, do avoid long lists of items in your Will. It is better to express a wish that your legatees will divide the class of assets among themselves in accordance with your wishes that are separately made known to them. In the case of major assets, like a flat or house, your legatee should be given the option to take the asset or the net proceeds of its sale. This will save unnecessary transfer expenses.
Remember that any estate duty liability is payable from the residue of an estate. If cash bequests use up too much liquidity in an estate, the residuary beneficiary might be prejudiced.
Generally speaking usufructs can be problematic. A usufruct grants the holder the right of use of the property for the rest of their life (or a defined period) but not ownership. If you really require someone to enjoy only the fruits of an asset then ensure that you obtain appropriate advice.
Nominating too many executors does not add value to the liquidation process. Only in the case of very large estates are multiple executor appointments any use. Appoint your spouse and an experienced professional executor. This will ensure continuity should you and your spouse die in an accident.
The bottom line is that Wills are important documents and should never be regarded as a nuisance or a simple thing. The purchase of a blank form template is not a wise choice. Make the effort to obtain timeous and sound professional advice. Do not forget to review your Will as life circumstances change. It is recommended that you review your Will frequently and certainly every two to three years. This will ensure that you keep abreast of any changes in the law or in your personal circumstances.
